Asim Akram, Member. The titled appeal has been filed against the impugned order dated 21.09.2020 whereby a major penalty of dismissal from service was imposed upon the appellant. A departmental appeal was preferred on 14.10.2020. The penalty was imposed upon the appellant upon registration of FIR No. 09 dated 06.06.2020 under Section 9-C and 15 of CNSA with Police Station Anti-Narcotics Force, Islamabad. After the acquittal the appellant filed another application for his re-instatment on 21.12.2021 which was rejected vide order dated 18.04.2022. Feeling aggrieved, the appellant preferred the titled service appeal.
2. The counsel for the appellant contended that the appellant was dismissed from service vide original order dated 21.09.2020 on the sole ground that a criminal case has been filed against him and he was arrested in furtherance thereof. It was also contended in the said order that the appellant was absent from duty without leave since 08.06.2020 but his absence was due to the appellant's arrest in a false case and the absence was neither willful nor intentional. The counsel further contended there is no other charge against the appellant and as he has been acquitted from the above referred FIR by the Court of competent jurisdiction vide judgment dated 15.12.2021. It is settled law that if any Government servant is penalized solely on ground of any criminal case upon acquittal the department penalization automatically stands waived off; with the application of the referred principle the appeal be accepted and the appellant be re-instated into service with all back benefits.
3. The learned DR while arguing the case relied upon Rule 8 of the Government Servants (Efficiency and Discipline) Rules, 1973 (E & D Rules) and contended that the dismissal of the appellant was in accordance with law and rules. Also, he was absent from duty w.e.f 08.06.2020 till the passing of the original order dated 21.09.2020. He further contended that no illegality has been done while passing of the impugned order and in the circumstances, the appeal is liable to be dismissed.
4. Arguments heard and record perused.
5. From perusal of the material available on record it transpires that neither any charge sheet, statement of allegations nor any show cause notice was served upon the appellant. The appellant was dismissed from service by passing the impugned order dated 21-09-2020 wherein it stated that he is absent from duty without leave from 08-06-2020 till the passage of the said order. Also, it is stated that a First Information Report (FIR) No. 09 of 2020 dated 06-06-2020 has been registered against the appellant under section 9-C & 15 of Control of Narcotic Substances Act, 1997 (CNSA) with Police Station, Anti Narcotic Force, Islamabad and the appellant has been arrested red handed and was in judicial lock-up at the time of passing of the impugned order. It is further stated in the impugned order that during investigation sufficient material has emanated which proves him guilty of misconduct; resultantly the appellant was awarded major penalty of dismissal from service under Rule 8 of the Government Servant (Efficiency and Discipline) Rules, 1973.
6. The appellant was acquitted from the charge levied in the FIR referred in the impugned order by Judge, Special Court (Control of Narcotic Substances), Islamabad vide its judgment dated 15-12- 2021. To consider the effect of dismissal of appellant from service after he is acquitted of the criminal charge it would be appropriate to refer in brief the judgment of the criminal Court acquitting the appellant of the charges. In the criminal case the appellant and another were tried for the offence of possessing, buying and selling one and half kilogram (11/2 kg) of opium. It was alleged in the FIR and supported through oral evidence of the prosecution that appellant was arrested red handed from Margalla Road, near village Saidpur, Islamabad on 06.06-2020 at 1810 hours. The wife of the appellant through Court orders got video recordings of a CCTV cameras installed in a mosque and Safe City Islamabad cameras wherein it was clear that the appellant was taken in custody from his residence in village Saidpur, Islamabad on 06-06-2022 at 1750 hours.
CCTV and Safe City video recordings were supported by oral evidence of the respective custodian.
The facts of the CCTV footage and Safe City cameras recordings were brought to the notice of Anti Narcotic Authorities on the very next day of taking the appellant in custody but no investigation was conducted on the issue. The trial Court acquitted the appellant and held: Thus, the prosecution has failed to prove the charges leveled against the accused facing trial beyond shadow of doubt.
7. Other charge levied in the impugned order is regarding absence from duty w.e.f. 08-06.2020 till the passing of the impugned order. It is mentioned in the impugned order that the appellant was arrested red handed i.e., at the time of raid on 06-06-2020 at 1810 hours and was behind the bars.
The appellant was only released after his acquittal orders dated 15-12-2021 where, after he filed application to be reinstated. The absence from duty was neither willful nor intentional rather was due to his illegal conning in a criminal case.
8. While passing the impugned order no departmental proceeding was initiated against the appellant and the only reason for imposition of major penalty upon appellant was his involvement in criminal case and absence from duty. Without initiation any departmental proceeding against a government servant a charge of `misconduct' cannot be proved; if he is only penalized for involvement in some criminal case then upon his acquittal by the competent Court of law would inevitably clear him of the departmental penalization. The Supreme Court of Pakistan in case titled Rashid, Mehmood vs. Additional Inspector-General of Police and 2 others (2002 SCM R 57) held as under: "It is to be noted that summary police proceedings instead of general police proceedings as provided under Punjab Police (Efficiency & Discipline) Rules, 1975. were initialed against the appellant in respect of the said criminal charge. No other misconduct on the part of the appellant or adverse proceedings/report against him could be shown or referred. Although in the discharge order the appellant was dubbed as inefficient an unfit to be retained in service but no specific example Jims shown to prove inefficiency and unfitness."
(Emphasis attached)
In case reported Malik Azhar ul Haq vs. Director of Food, Punjab (1991 SCMR 209) the Apex Court reiterated O&M Establishment Manual, Vol. 1 (revised) (Chapter V at p.546), which read as under: "3. Similarly when the charge is dismissed without any suggestion by the Court in that the conduct of the accused has been suspicious or any indication that it is merely giving the accused the benefit of a doubt, the acquittal should be treated as an honourable acquittal and no further departmental action should be taken."
The Hon'ble Court further held: "6. The above principles have to be followed in taking departmental action against a Government servant who has been prosecuted criminally but is acquitted by the Court. A proper inquiry has to be conducted before a penalty is imposed upon a civil servant unless the inquiry 'procedure is dispensed with in accordance with Rules. As the appellant has not been awarded-any fine or imprisonment, therefore, Rule 9 is inapplicable."
Rule 9, referred in above judgment, is of Punjab Civil Servants (Efficiency and Discipline Rules is reciprocated with Rule 8 of E & D Rules and relied upon in the impugned order.
9. The Hon'ble Supreme Court in case titled Mian Muhammad Shafa vs. Secretary to Government of Punjab, Population Welfare Program, Lahore (1994 PLC (CS) 693) defines 'acquittal' and unwaged the term 'honourable acquittal' while held: "There is hardly any ambiguity in these provisions and they do not present any difficulty. We are in no doubt that the provisions of clause (a) are attracted by the facts on ground that the appellant was acquitted of the charge against him. Although, the department claims that this was result of benefit of doubt, we would hold that the acquittal is honourable and the expression 'honourable acquittals' occurring in clause (a) seems to be superfluous and redundant......... the appellant's acquittal of the charge of misconduct and his reinstatement in service entitled him of full pay and remuneration of entire period from 6-10-1980 to 12-2-1986 under' F.R. 54(a) of the Rules. We hold that the provisions of F.R. 54(b) are not relevant and that they could not have been pressed into service by the Department in deciding the matter."
(Emphasis attached)
10. The Hon'ble Supreme Court of Pakistan in case titled Dr. Muhammad Islam vs. Government of N.W.F.P. through Secretary, food, Agriculture, Livestock and Cooperative Department (1998 SCMR 1993) further elaborated the definition of acquittal by explaining `acquittal on basis of compromise' by adding: "It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittal? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals."
Similar stance was case titled Director General, Intelligence Bureau vs. Muhammad Javed (2012 SCMR 165) wherein it is held compromise and consequent acquittal of the respondent in the said criminal case cannot be labeled as his conviction as to entail consequences of his disqualification from service.
11. Another aspect which needs consideration is the time of filling an application for reinstatement in cases where penalty is imposed, upon the basis of involvement in criminal case. It would be futile to file such application before acquittal. The limitation in such cases has been elaborated in case titled Chairman, Agriculture Development Bank of Pakistan vs. Mumtaz Khan (PLD 2010 Suprem e Court 695).
12. While rejecting the reinstatement application of the appellant the authority has altogether ignored the laws, rules and judgments of the Hon'ble Supreme Court of Pakistan and relied upon the police investigations which has already been condemned by the Judge, Special Court (Control of Narcotic Substances), Islamabad vide its judgment dated 15-12-2021. The appellant order dated 18-04-2022 being against the law, rules, precedents and without facts is void in nature.
13. In light of the above reasoning the orders dated 21-09-2020 and 18-04-2022 are hereby set aside with the effect that appellant be reinstated in service w.e.f. the date of his dismissal with all back benefits as per rule F.R. 54(a).
14. There shall be no order as to costs. Parties be informed.